Harold G. Shaw v. Eric K. Shinseki, Secretary of Veterans Affairs

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# United States Court of Appeals for the Federal Circuit

HAROLD G. SHAW,
Claimant-Appellant,
V.
ERIC K. SHINSEKI, SECRETARY OF VETERANS
AFFAIRS,
Respondent-Appellee.

2011-7153
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Appeal from the United States Court of Appeals for
Veterans Claims in case no. 08-3753, Judge Mary J.
Schoelen.

Before LOURIE, MOORE, and REYNA, Circuit Judges.
PER CURIAM.

## ORDER

The Secretary of Veterans Affairs moves to waive the
requirements of Fed. Cir. R. 27(f) and to dismiss Harold
G. Shaw's appeal for lack of jurisdiction. Shaw has not
filed a response.

By way of background, Shaw served on active duty in
the U.S. Army from July 1963 to July 1966 and from
August 1966 to May 1969. After service, Shaw was
diagnosed with post-traumatic stress disorder (PTSD).

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Since March 1994, Shaw has been receiving Department
of Veterans Affairs' (DVA) disability compensation bene-
fits for his PTSD because the agency determined his
condition arose out of his service.

In 1997, Shaw sought DVA disability benefits for
cerebral vascular accidents (CVAs), hypertension, and
atherosclerosis pursuant to 38 C.F.R. § 3.310(a). That
regulation authorizes entitlement to DVA disability
benefits for any disability that is "proximately due to or
the result of a service-connected disease or injury." 38
C.F.R. § 3.310(a).

A dispute arose as to whether the evidence of record,
which included opinions by Shaw's own medical physician
and Department physicians who had examined Shaw, had
sufficiently established that Shaw's CVAs, hypertension,
and atherosclerosis were proximately caused by or the
result of his PTSD.

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After determining that the opinions in the record were
speculative, inconclusive, and insufficient, the Board of
Veterans' Appeals pursued additional development to
clarify the record by securing the medical opinion of an
independent medical examiner (IME) on the relationship
between Shaw's PTSD and his claimed conditions.

In November 2006, the IME opined against Shaw's
claims. The IME stated in his report that after a compre-
hensive literature search, he found no scientific studies
that convincingly demonstrated PTSD either causes or
exacerbates chronic hypertension. The IME added that
the most reliable study in the field concluded that there
was no correlation between combat stress-associated
veterans and prevalence of hypertension. The IME fur-
ther stated that even if Shaw did not have his history of
smoking, that would not change the fact that attributing
his current conditions to his PTSD was medically specula-
tive.

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Finding that the IME's opinion was the most proba-
tive evidence of record, the Board denied Shaw entitle-
ment to secondary-service connection.

Shaw then sought review by the Court of Appeals for
Veterans Claims aided by legal representation. Shaw
argued that the Board failed to properly apply the "benefit
of the doubt" rule. The court, however, rejected this
argument on the basis that the rule applies after a deter-
mination is made that the evidence is in equipoise, which
was not the case here. The court also held that Shaw's
contention that the Board should have awarded more
weight to his own treating physician's opinion was with-
out merit because there is no "treating physician" rule in
the VA benefits system.

Under 38 U.S.C. § 7292, this court has limited juris-
diction over appeals from decisions of the Court of Ap-
peals for Veterans Claims. See Forshey v. Principi, 284
F.3d 1335, 1338 (Fed. Cir. 2002) (en banc). This court
"may not review (A) a challenge to a factual determina-
tion, or (B) a challenge to a law or regulation as applied to
the facts of a particular case." 38 U.S.C. § 7292(d)(2).

Shaw seeks review of the Court of Appeals for Veter-
ans Claims' decision. In his informal brief, however,
Shaw indicates that his appeal does not seek to challenge
a constitutional issue, the validity or interpretation of a
statute or regulation, or any other legal issue addressed
below.

Although pro se petitioners "are not required to file
legally impeccable submissions to proceed on appeal,"
Hilario v. Secretary, Dep't of Veterans Affairs. 937 F.2d
586, 589 (Fed. Cir. 1991), Shaw's brief has not raised any
argument within this court's limited jurisdiction. Fur-
thermore, the only argument advanced below that this
court would have jurisdiction over, i.e., the application of
the "treating physician" rule to veterans benefits cases,
was squarely rejected by this court in White v. Principi,

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SHAW v. DVA

243 F.3d 1378, 1381 (Fed. Cir. 2001). Therefore, to the
extent Shaw's appeal raises that issue, the Court of
Appeals for Veterans Claims' decision is summarily
affirmed. See Joshua v. United States, 17 F.3d 378, 380
(Fed. Cir. 1994) (Summary affirmance of a case "is appro-
priate, inter alia, when the position of one party is so
clearly correct as a matter of law that no substantial
question regarding the outcome of the appeal exists.").

Accordingly,

IT IS ORDERED THAT:

(1) The Secretary's motions are granted. The appeal
is dismissed-in-part and affirmed-in-part.

(2) Each side shall bear its own costs.

FOR THE COURT

SEP 0 2 2011

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Date

/s/ Jan Horbaly
Jan Horbaly
Clerk

cc: Harold G. Shaw
P. Davis Oliver, Esq.
s20

Issued As A Mandate:

SEP 0 2 2011

FILED
U.S. COURT OF APPEALS FOR
THE FEDERAL CIRCUIT
SEP 02 2011

JAN HORBALY
CLERK